(K. Vinod Chandran and N.V. Anjaria, JJ.)
Arifa and Others ________________________________ Petitioner(s);
v.
Abhiman Apartment Co Operative Housing Society Ltd. and Others _____________________________________________ Respondent(s).
Special Leave Petition (C) @ Diary No. 14976 of 2024§, decided on July 14, 2025
The Order of the court was delivered by
Order
1. The question arising in the above case is as to whether the liberty granted to file a fresh suit by the High Court would enable the party to revive a cause of action and save limitation, so as to enable raking up all grounds earlier raised and rejected by concurrent findings of the trial court and the first appellate court, affirmed by the High Court in Second Appeal.
2. We heard Mr. Raghavendra Srivatsa, Senior Advocate appearing for the petitioners and Mr. Sharanagouda Patil, Advocate appearing for respondent No. 1.
3. The original plaintiff, the predecessor-in-interest of the petitioners herein admittedly entered into an agreement for sale of the suit scheduled property to the first defendant, a Cooperative Society. It is also admitted that a Power of Attorney (PoA) was executed in favour of the second defendant, the Secretary of the first defendant. It is alleged that the PoA was executed on coercion and misrepresentation, which also stood cancelled before the execution of the sale deed in favour of the first defendant by the second defendant, by virtue of the PoA. Admittedly, the plaintiff first filed a suit for permanent injunction against the second defendant, impleaded in his capacity as the Secretary of the Society, for a permanent injunction from alienating or disposing off the plots comprised in the suit scheduled property and from making any constructions thereon. The said suit was dismissed by the trial court confirmed by the First Appellate Court against which the plaintiff approached the High Court in the second appeal. The second appeal stood allowed upon which the Society filed an SLP before this Court in which leave was granted and the Civil Appeal was allowed as per Annexure P/9, remanding the matter to the High Court by Annexure P/10.
4. The High Court on remand, dismissed the second appeal finding no substantial question of law and also rejected an amendment application to incorporate additional reliefs of declaration of title and recovery of possession, which applications were filed in the second appeal. The High Court having agreed with the concurrent findings, while dismissing the Second Appeal granted liberty to file a comprehensive suit for the reliefs sought for, including the proposed amendment.
5. Relying on the liberty granted, the plaintiff filed a fresh suit for declaration of two sale deeds executed by second defendant in favour of the first defendant as void ab initio and declaration of the further sale of plots comprised in the scheduled land by the first defendant in favour of the defendant nos. 2-120 as illegal and invalid. The plaintiff also sought possession of the property from defendant nos. 1-120 and a permanent injunction restraining them from interfering with the actual physical and peaceful possession of the scheduled property by the plaintiff. The said suit was decreed by the trial court and in first appeal the judgment and decree were set aside, and the suit was dismissed on the grounds of resjudicata, limitation and non-joinder of necessary parties.
6. On the ground of resjudicata, we cannot but notice that the High Court in the earlier round in Annexure P/10 judgment found that the plaintiff had executed two sale agreements in favour of the first defendant and had put the first defendant in possession of the scheduled land, the conveyance having been effected subsequently by the Secretary of the Society to the Society on the strength of a PoA. The High Court approved the concurrent finding that the notice of cancellation of the PoA was never served on the Secretary of the Society. The acknowledgement produced to prove its service was not with respect to the notice of cancellation, since it was four months later to the date in the notice of cancellation. It was also found by all the three courts that sale deeds were executed in favour of the allottees of the Society in whose possession the plots were, who had constructed residential buildings in the said lands: not impleaded in the suit seeking permanent injunction. The additional relief prayed through an amendment for declaration of title and recovery of possession was hence rightly rejected by the High Court. The second appeal was dismissed finding no substantial question of law and by a laconic observation, liberty as stated above was reserved.
7. In the impugned judgment reversing the judgment and decree of the trial court, the High Court has categorically found that the suit was barred by limitation. The specific averment regarding the cause of action, as stated in the plaint was extracted, which was the date on which the High Court had dismissed the second appeal and reserved such liberty. The limitation would commence from the date of execution of the agreements, the first two of which were in the year 1998. Though the two sale deeds in favour of the Society were thus executed, when the first suit was pending, the plaintiff did nothing to challenge the said conveyance. In the earlier suit the defendant in the written statement had specifically pleaded about the conveyances and the plaintiff admitted his knowledge of all the conveyances while verifying the ‘record of rights’. No cause of action can be claimed on the liberty reserved, which is only on just exceptions including limitation, which in any event has to go by the period prescribed in the statute of limitation. The High Court has further found that there can also be no resort to Section 14 of the Limitation Act, since the suit already laid was not before a wrong forum but was not properly framed. Even when a suit is withdrawn with leave of the Court to file a fresh suit, under Order 23 Rule 1 of the CPC limitation applies with full force as per Rule 2 of Order 23.
8. The presently filed suit had sought for declaration as null and void, the conveyances in favour of the first respondent Society and the subsequent conveyances made to defendant nos. 2-120 as also recovery of possession from the defendants and permanent injunction as against the defendants from interference in the enjoyment of the property.
9. The entire sub-stratum of the plaintiff’s case is built upon the alleged coercion and misrepresentation in execution of the PoA and subsequent cancellation effected, which ground does not survive having been rejected concurrently by three courts in the earlier proceeding, clearly barring the present suit on the ground of resjudicata. The issue now agitated was substantially in issue in the earlier suit and decided against the plaintiff, bringing in the rigor of Section 11 of the Civil Procedure Code.
10. We perfectly agree with the findings in the impugned judgment regarding limitation and resjudicata and cannot but observe that the liberty granted by the High Court in the second appeal was akin to flogging a dead horse; which cannot give a fresh lease of life to either the cause of action; to save limitation or the grounds on which the declaration and consequential relief has been prayed for in the present suit; which grounds were already adjudicated in the earlier suit and found against the plaintiff by three Courts.
11. We also notice that the High Court has further observed that the suit is barred for reason of non-joinder of necessary parties, namely the Belgaum Urban Development Authority and the Badminton Association who were conceded certain extents of property for forming a lay out and civic amenities; with roads to be maintained by the former, and the establishment and management of a Badminton Hall by the latter, which we agree with.
12. We find absolutely no reason to interfere with the well-considered judgment of the High Court which we affirm while rejecting the Special Leave Petition.
13. Pending application(s), if any, shall stand disposed of.
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§ 2025 INSC 875
